Comment Attacking the Negligence Rule in Defamation of Private Plaintiffs: Embers Supper Club v. Scripps Howard BroadcastingCo. I. INTRODUCTION The interest in free speech and press and the interest in reputation are often at odds. The first amendment to the Constitution of the United States prohibits any law "abridging the freedom of speech, or of the press."' Until 1964, however, the Supreme Court held that defamatory utterances, 2 which damaged an individual's reputation interest, were outside the scope of the first amendment. 3 Therefore, states defined their own standards of liability, often resorting to common law principles such as strict liability, tempered by various common law privileges. 4 The United States Supreme Court altered this framework in 1964 by entering the area of defamation. In a series of decisions, the Court established a constitutional privilege for certain defamatory statements;5 however, this privilege subsequently was cur- tailed in Gertz v. Robert Welch, Inc.6 Currently, the Supreme Court requires a plaintiff who is a public official or a public figure7 to prove actual malice8 to maintain an action for defamation, while individual states define the standard for private plaintiffs, with actual malice not being a prerequisite to liability. 9 Recently, in Embers Supper Club v. Scripps Howard BroadcastingCo. ,10 the Supreme Court of Ohio adopted the simple negligence standard of liability in the context of a private citizen plaintiff. This Case Comment will critique the simple negligence rule adopted in Embers Supper Club, and propose alteratives for Ohio and the entire United States. These proposals will focus on the proper balance for the law to strike between the competing interests of a free press" and personal reputation. 1. U.S. Co',sr. amend. I. 2. See infra text accompanying notes 20-36. 3. Beauhamais v. Illinois, 343 U.S. 250 (1952); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 4. See W. PeossER ANvW. KasroN, Lw oFToRTs, §§ 114, 115, at 815-39 (5th ed. 1984) [hereinafter cited as PRossEx & KEEro.]. 5. See infra text accompanying notes 37-54. 6. 418 U.S. 323 (1974). Gertz dealt with private plaintiffs. Id. See infra text accompanying notes 55-58. 7. See infra text accompanying note 47. 8. See infra text accompanying note 39. 9. Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). See infra text accompanying note 58. 10. 9 Ohio St. 3d 22, 457 N.E.2d 1164, cert.denied, 467 U.S. 1226, (1984). 11. Since Embers Supper Club dealt with a traditional media defendant (i.e., a newspaper), this Comment will deal for the most partwith arguments raised in the context of a media defendant. The author is not asserting, however, that "non-media" defendants deserve lesser first amendment protection. As Justice White noted in his concurrence in Dun & Bradstreet, Inc. v. Greenmoss Builders, 105 S.Ct. 2939, 2953 n.4 (1985), the informative function performed by the press also is performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. In fact, a majority of the GreenmossCourt found that the rights of the institutional media are "no greater and no less than those enjoyed by other individuals or organizations engaged in the same activities." See id. at 2959 (Brennan, J., dissenting) (This majority 504 OHIO STATE LAW JOURNAL [Vol. 47:503 II. Embers Supper Club v. Scripps Howard Broadcasting Co. Embers Supper Club' 2 presented the Supreme Court of Ohio with the opportu- nity to delineate a standard of review for defamation suits involving private plaintiffs. Embers Supper Club brought suit against Scripps-Howard Broadcasting Company because of two broadcasts aired on Cincinnati television station WCPO-TV which allegedly linked the Supper Club to organized crime.13 The broadcasts resulted from a police raid of the Supper Club, in which police seized Daily Racing Forms, Kentucky Sports Bulletins, and betting slips. 14 The inaccuracy alleged in the first broadcast was an unsubstantiated connection of Embers with a known organized crime establishment. In addition, the second broadcast added the term "bookie," a 5 term which had not been used in the police report.1 The trial court granted a directed verdict in favor of the defendant, and the Court of Appeals affirmed.' 6 The Supreme Court of Ohio, however, reversed the directed verdict and remanded the case for a new trial.' 7 The court established for the first time a standard of review for defamation actions involving private individuals and the media.' 8 The standard adopted by the court was: "[W]here a prima facie showing of defamation is made by the plaintiff, the question which a jury must determine by a preponderance of evidence is whether the defendant acted reasonably in attempting to discover the truth or falsity or defamatory character of the publication."' 19 HI. DEFAMATION FROM COMMON LAW TO THE PRESENT A. Common Law An action for defamation 20 seeks to recover for damage done to reputation and good name.2' The Second Restatement of Torts defines a communication as defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with included the four Justices in dissent and Justice White in concurrence.). This Comment simply uses the institutional media as the most obvious example of theneed for greater first amendment protection. 12. 9 Ohio St.3d 22, 457 N.E.2d 1164, cert. denied, 467 U.S. 1226, (1984). 13. Id. at 23, 457 N.E.2d at 1165. 14. Id. 15. Id. As a result of the police mid at Embers Supper Club, a cook was cited for a gambling offense, but his case was dismissed. No one else at Embers was charged with any gambling offense. Id. at 23, 457 N.E.2d at 1166. 16. Embers Supper Club, Inc. v. Scripps-Howard Broadcasting Co., No. C-810708, slip op. at 7 (Ohio Ct. App. Oct. 20, 1982). 17. Embers Supper Club v. Scripps-Howard Broadcasting Co., 9 Ohio St. 3d 22, 26,457 N.E.2d 1164, 1168, cert. denied, 467 U.S. 1226 (1984). 18. See Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co., 43 Ohio App. 2d 105, 334 N.E.2d 494 (Ct. App. 1974), in which an Ohio court of appeals adopted the simple negligence rule prior to the decision in EmbersSupper Club. 19. Embers Supper Club v. Scripps-Howard Broadcasting Co., 9 Ohio St. 3d 22, 25,457 N.E.2d 1164, 1167, cert. denied, 467 U.S. 1226, (1984). 20. The law of defamation embraces both the torts of libel and slander. Libel is the "publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words." REsrA-uEi'r (SEcoao) or Toms § 568 (1) (1977). Slander is the "publication of defamatory matter by spoken words, transitory gestures or by any form of communication other than those stated in Subsection (1)." Id. at § 568 (2). Broadcasting of defamatory material by means of radio or television is considered libel. Id. at § 568A. 21. PRosstx & KFssN, supra note 4, § I11,at 771. 1986] DEFAMATION OF PRIVATE PLAINTIFFS 505 him.22 The common definition used in Ohio is a "false and malicious publication made with the intent to injure a person's reputation or to expose him to public hatred, contempt, ridicule, shame or disgrace, or to affect him adversely in his trade or profession.''2 3 To constitute defamation, the communicator must convey the infor- mation to some third person, since defamation is concerned with the opinion members of the community have toward the plaintiff.24 Therefore, insults to the plaintiff, if not communicated to others, provide no basis for a defamation suit. A public communication, such as in a newspaper or through radio or television, is presumed to reach the requisite audience3 5 The question of whether or not a given 26 statement is defamatory is for the court to decide. At common law, a libel plaintiff was able to recover simply by proving that the defendant was responsible for publishing27 a defamatory statement. 28 Malice,29 which at common law was defined as spite or ill will,30 was implied as a matter of law from publication.31 Once a plaintiff made out a prima facie case, the defendant could avoid liability only by proving that the statement was substantially true or that it was privileged. 32 Examples of absolute privileges included judicial proceedings, legislative proceedings, and executive communications. 33 A qualified privilege, which conferred immunity when publication was made in a reasonable manner and for a proper purpose, was accorded to fair comment on matters of public concern.34 The privileges were narrowly defined,35 however, and common law rules thus effectively imposed strict liability upon defamation defendants. 36 B. Supreme Court Cases In 1964 the Supreme Court of the United States began to attack the concept of liability without fault in defamation actions by constitutionalizing the common law 22. REsTATeMExr(SEco.) oF Toms, § 559 comments c, e (1977). 23. Thomas H. Maloney & Sons, Inc. v. E.W. Scripps Co., 43 Ohio App. 2d 105, 107, 334 N.E.2d 494, 497 (Ct. App. 1974). 24. PRossER& KEEroN,supra note 4, § 111, at 771. 25. Id. § 111, at 774. 26. Id. 27. As used in the law of defamation, a "publication" is a written publication or an oral statement. Id. § 113, at 797. 28. Burton v. Crowell Publishing Co., 82 F.2d 154 (2d Cir. 1936); Upton v.